Holding

Temporary posts created prior to the amendment may be filled by promotion or direct recruitment under the amended rules, the advertisement for ten posts does not breach the one‑third limit, and the amended rules are not unconstitutional.

Summary

The Supreme Court examined whether 14 temporary posts of Additional District Judges created under the Delhi Higher Judicial Service Rules, 1970 before their amendment could be filled only by promotion from the Delhi Judicial Service or also by direct recruitment from the Bar as permitted by the amended rules of 1987. The Court also considered whether the advertisement for ten direct‑recruit posts violated the proviso of Rule 7(b) limiting direct recruits to one‑third of the total service strength, and whether Rules 7, 16 and 17 of the amended rules infringed Articles 14, 16 and 233 of the Constitution. Relying on its earlier 1986 order directing the High Court to proceed with both promotion and direct recruitment in anticipation of the draft rules, the Court held that the temporary posts could be filled by either method and that the advertisement did not exceed the one‑third ceiling. The Court further held that the amended rules were constitutionally valid and did not contravene the cited articles. Consequently, both writ petitions were dismissed.

Issues considered

Whether temporary posts created before the amendment of the Delhi Higher Judicial Service Rules must be filled only by promotion under the pre‑amended rules.
Whether the advertisement for ten direct‑recruit appointments violates the one‑third limit imposed by Rule 7(b).
Whether the amended Rules 7, 16 and 17 violate Articles 14, 16 and 233 of the Constitution of India.

Legislation cited

Constitution of Indias. Art.14, s. Art.16, s. Art.233, s. Art.309

Subjects

Service lawTemporary postsPromotionDirect recruitmentDelhi Higher Judicial ServiceConstitutional validityArticles 14, 16, 233Rule 7(b)Rule 16Rule 17Judicial appointmentsSeniority

Judgment

A DELHI JUDICIAL SERVICES ASSOCIATION AND ORS.
v.
•
DELHI HIGH COURT AND ORS.

MAY 1, 2001

B [G.B. PATTANAIK, S.N. PHUKAN AND B.N. AGRAWAL, JJ.]

Service Law

Delhi Higher Judicial Service Rules, 1970:
c Rule 16-Temporary posts filled up by promotion--Amendment ofRules
in 1987 provided filling up temporary posts by promotion and direct
recruitment-Vacancies of temporary posts arising prior to amendment r>f
Rules-Held, filling up of temporary posts by direct recruitment is valid as
the rules were amended pursuant to the Courts direction.
D
Rules 7, 16 and 17 of the amended Rules-Held, not violative of
Articles 14, 16 and 233 of the Constitution.

Delhi lligher Judicial Service Rules, 1970 provided for filling up of
. ...
temporary posts by promotion from Delhi Judicial Service. The Rules were
E amended by a notification issued in March 1987. Amended Rules provided
for filling up of temporary posts by promotion and by direct recruitment from
the Bar. Pursuant to the amendment, an advertisement was issued in April
1987 inviting applications from practising advocates for filling up of 10
temporary posts of Additional District Judges in Delhi Higher Judicial
F Service: Writ Petition was filed before this Court by Petitioner-Association
of promottee officers claiming that the vacancies available prior to 1987 will
have to be filled up under pre-amended rules and then:fore the advertisement
that was issued for filling up 10 posts by direct recruitment as per the
amended rule~ must be struck down. Another writ petjtion was fded before
this Court by a promotee officer assailing the validity of Rules 7, 8, 16 and
G 17 of the amended rules.

Petitioner-Association contended -that the temporary 1>0sts which were
created prior to the amended rules could be filled up only in accordance with
the pre-amended rules; that the ·posts co11ld be filled up by promotion from
the members of the Delhi Judicial Service; that the rights of its members
fl 314
DELHI JUDICIAL SERVICES ASSON. v. DELHI HIGH COURT 315

- cannot be taken away by inaction on the part of the concerned authority in
not filling up the same; that the advertis11ment issued to fill up 10 posts by
way of direct recruitment is contrary to law and should be struck down; and
A

that even on a construction of Rule 7(b) of the amended rules, only 1/3rd of
the 14 posts, which were created, could be filled up by direct recruitment.

The promotee officer contended that· Rules 7, 16 and 17 of the amended B
rules violate Article 233 and Article 16(1) of the Constitution; that with the
amendment in Rule 7 of the Rules, there has been a decline in the standard
of the appointees in the lowest level, which in turn affects the efficiency and
intelligence of the officers in the cadre and this in tum is violative of Article
233 of the Constitution; and the filling up of vacancies under the amended C
rules results in the denial of equal opportunity, which is violative of Articles
14 and 16 of the Constitution.

Respondent-High Court contended that the advertisement calling for
applications from members of the Bar for making direct recruitment was
pursuant to the earlier order of this C~~rt dated 18.12.1996 passed on a D
Writ Petition filed by the promotees; that on a proper construction of Rule
7(b), it is fully justified in issuing an advertisement for filling up of 10 posts
by direct recruitment; and that the amended Rules, which were brought about
pursuant to the order of this Court, do not contravene Article 16 or Article
233 of the Constitution.
E
Dismissing the Writ Petitions, the Court

HELD : 1.1. Merely because temporary posts were created under Rule
16 of the I!elhi Higher Judicial Service Rules, 1970, it was not obligatory
for the appointing authority to fill up those posts immediately. The earlier
order/direction by this Court dated 18.12.1986 indicated that the High Court F
should start the process of selection by direct recruitment in accordance
with the draft rules, which the court had seen at that point of time. This
Court, on being aware of the fact that temporary posts have been created and
a grievance has been made by the members of the Delhi Judicial Service that
those posts were required to be filled up only by way of promotion from them G
in accordance with the rules as it stood then, get a direction that the posts
should be filled up both by promotion and by direct recruitment in accordance
with the draft rules, in the event the said draft rules ultimately come into
force. Therefore, the contention of the Petitioner-Association that the posts
were required to be filled up only by way of promotion under the pre-amended
rules, notwithstanding the fact that the advertisement itself was issued H
316 SUPREME COURT REPORTS [2001] 3 S.C.R.
/

A subsequent to the rules being amended and notwithstanding the fact that this
Court had earlier indicated that the process of selection even by direct
recruitment should take effect, without waiting for the rules being finally
enforced, cannot be accepted. (325-F-H; 326-A]
1)

1.2. The dispute, whether a mandamus could be issued to fill up the
B temporarily created posts by giving promotion to the officers of the Delhi
Judicial Senrice, was before this Court and the Court then evolved a formula
which was held to be fair and reasonable and, therefore on the agreement
of parties, the said formula was embodied in the order. The Delhi Judicial
Service Association, which was petitioner in this Court, agreed to the formula
C evolved by this Court. While embodying the formula, this Court had indicated
that the High Court of Delhi should invite applications from ,the members
of the Bar by way of public advertisement for making direct recruitment in
anticipation of the sanction of the draft rules and further stated that after
the draft rules are sanctioned and published, a further advertisement, inviting
applications from the members of the Bar for direct recruitment shall be
D published toI enable those members of the Bar, who might not have responded
to the first advertisement issued in anticipation of the sanction of the rules.
In the teeth of the aforesaid order, the conclusion is irresistible that 14
temporary posts created even prior to the amendment of the rules could not
have been filled up only by promotion from the Delhi Judicial Service as·
E contended by the Association. On the other hand, the earlier order of this
Court unequivocally stipulates that those posts should be filled up in accordance
with 'the rules to be amended, which at that stage was only in a draft form.
That apart, the process of selection not having been started and even the
advertisement itselfnot having been issued and such advertisement having
been issued only subsequent"to the amendment of the Rules, it is futile to
F contend that the posts could be filled up under the pre-amended rules, merely
because the posts had been created while the amended rules have not come
into force. (326-D~Hr

Y.V Rangaiah and Ors. v. J. Sreenivasa Rao and Ors., [1983] 3 SCC
284, distinguished.
G
Rudra Kumar Sain and Ors. v. Union of India and Ors., (2000] 8 SCC
251; O.P. Sing/a and Am: v. Union ofIndia and Ors., [1984] 4 SCC 450; S.B.
Patwardhan v. State of Maharashtra, [1977] 3 SCC 399 and B.L. Gupta and
Anr. v. M:C.D., (1998]9 SCC 223, referred to...

H 2.1. The Rules·provide. a Maximum·number of posts which could be
DELHI JUDICIAL SERVICES ASSON. v. DELHI HIGH COURT (PATTANAIK, J.] 317
filled up by direct recruits and it does not say that I/3rd of the number of A
vacancies at a given point of time is required to be filled up by direct recruits.
The embargo is that the High. Court, which is entitled to fill up the posts in
Delhi Higher Judicial Service both by promotion and by direct recruitment
from the Bar, cannot make direct rec111itment so as to exceed I/3rd of the
total number of posts in the service. At the relevant point of time, when the B
advertisement was issued, the. total number of posts in the service being 53-
39 permanent and I4 temporary - and the number of direct recruits at that
point of time in Delhi Higher Judicial Service being 8, the advertisement
issued by the High Court being for recruitment by direct recruits for 10
posts would not constitute an infraction of the proviso to Rule 7(b) of the
Rules. [327-D-F] C
3. The Delhi Higher Judicial Service having been framed in consultation
with and on recommendations of the High Court and the rules having provided
for filling up the posts in Delhi Higher Judicial Service by promotion as well
as by direct recruitment with the rider that the direct recruits cannot be
. more than I/3rd of the total number of posts, the contention that such Rule D
violates Articles 14, 16 and 233 of the Constitution is wholly misconceived.
~ ~~

Orissa Judicial Services Associatio11, Cuttack and Am: v. State of Orissa
and Ors., AIR (I991) SC 382, relied on.
E
ORIGINAL JURISDICTION : Writ Petition (C) No. 1023 of 1987.

(Under Article 32 of the Constitution of India)

WITH
F
Writ Petition (C) No. 1643 of 1987

P.N. Mishra, Vlkrant Yadav, Abhishtha Kumar, Tara Chandra Sharma and
G .P. Thareja in person for the Petitioners.

M.M. Kashyap, A. Mariarputham, B.K. Pal (N.P.), RP. Gupta, D.N. G
Goburdhan, Rakesh K. Khanna, Ms. Anuradha Joshi, Rajesh Prasad Singh
and T.L. Garg for the Respondents.

The Judgment of the Court was delivered by

PATTANAIK, J. The unending dispute between the promotees and H
318 SUPREME COURT REPORTS [2001] 3 S.C.R.

A direct recruits in Delhi Superior Judicial Service has reached the third round .,
in these two writ petitions and we hope and trust that this will be the final ..._
round, at least for quite sometime to come. After the judgment of this Court
in Singla's case,· way back in 1984, disputes arose in the matter of its
implementation and the writ petitions filed in this Court under Article 32 on
being referred to a Constitution Bench, on a misconceived notion that the
B validity of the judgment in Singla's case is pending consideration before a
Constitution Bench, remained pending for long 16 years and was finally
disposed of by the Constitution Bench since reported in [2000] 8 SCC 25,
Rudra Kumar Sain and Ors. v. Union of India and Ors. The dispute was the
manner in which the inter se seniority has to be computed between the direct
c recruits and promotees in Delhi Higher Judicial Service. The present two writ
petitions were initially also there before the· Constitution Bench, but in view
of the fact that the subject matter of dispute was different, an order had been
passed to de-link these two matters. Be it be stated that the writ petitions
which had been filed and were disposed of by the Constitution Bench on
22.8.2000 was at the behest of the promotee officers. The second round of
D litigation was at the behest of some direct recruits, claiming seniority over
some of the promotees and that stood disposed of on 31.1.200 l. These two
writ petitions are at the behest of promotee officers, one by the Association >-
and another by an individual. While the Association of promotee officers
claimed the relief that the vacancies available prior to 1987, when Delhi Higher
E Judicial Service Rules stood amended, will have to be filled up under the pre-
amended rules and, therefore, the advertisement that was issued on 6.4.1987,
inviting applications for filling up 10 posts by direct recruitment must be
struck down, the other application by an individual promotee officer assails
the validity of Rules 7, 8, 16 and 17 of the amended rules, which were brought
on 17th of March, 1987. The brief facts necessary for disposal of these two
F writ petitions may be stated hereunder. In exercise of powers conferred by the
proviso to Article 309 of the Constitution, the Lieutenant Governor of Delhi
in consultation with the High Court of Delhi made a set of rules governing
the conditions of service of the f'4embers belonging to the Delhi Higher
Judicial Service called the Delhi Higher Judicial Service Rules, 1970 (hereinafter
referred to as 'the Rules'). The Rules came into force on being published in
G
the Gazette in 1971. The said rules define "Initial recruitment" in Rule 2(g) to
mean the first recruitment and appointment made to the service after the
commencement of the rules and Rule 5 provides the method of recruitment
"/
to the service subsequent to the initial recruitment and Rule 6 provides the
method for having the initial recruitment. Rule 16 conferred power on the
H Administrator to create temporary posts in the service and also to fill up the
DELHI JUDICIAL SERVICES AS SON. v. DELHI HIGH COURT [PATT ANAIK, J.] 319

.J.c
same in consultation with the High Court by persons from amongst the A
members of the Delhi Judicial Service. Thus, the temporary posts created by
.,..
the Administrator were intended to be filled up by promotion from the Delhi
Judicial Service. Rule 17 also enables the Administrator to fill up the substantive
vacancies in the service by making temporary appointment thereto from
amongst the members of the Delhi Judicial Service in consultation with the
High Court. Rule 7 provided that recruitment to the Delhi Higher Judicial B
Service could be from the Bar by direct recruitment but under the proviso, not
more than l/3rd of the substantive posts in the service could be held by the
';._
direct recruits. When writ petitions were filed by some of the promotees, O.P.
Singla and Ors., making a grievance as to their continuance on ad hoc or
temporary basis for years together and as to the discriminatory treatment that c
is meted out to them, this Court in [1984] 4 SCC 450, (O.P. Sing/a and Anr.
v. Union of India and Ors.) came to hold that the so-called quota provided
in Rule 7 has been broken and, therefore, the seniority has to be counted on
the basis of continuous length of service only, excluding the stop-gap or
fortuitous appointment. Following the judgment of this Court in S.B.
Patwardhan v. State ofMaharashtra, [1977] 3 SCC 399, the Court was of the D
0pinion that in a situation where 'quota and rota' rule has inevitably broken
......_ down, the seniority between the direct recruits and promotees should be
determined accordinp to the dates on which they were appointed to their
respective posts, so far as direct recruits are concerned and the dates from
which the promotees have been officiating continuously either in any temporary E
posts created in the service or in substantive vacancies to which they were
appointed in a temporary capacity. The seniority list was struck down and a
fresh seniority list was directed to be prepared on the basis of continuous
length of service. Pursuant to the aforesaid decision of this Court, the High
Court examined the matter afresh. But as there was no enunciation of the
expression "stop-gap, ad hoc and fortuitous", the High Court adopted a E
peculiar procedure and determined the inter se seniority. Aggrieved by the
same, when writ petitions were filed, those writ petitions having been referred
to the Constitution Bench, stood disposed of on 22.8.2000, indicating the
error committed by the High Court and directing the High Court to re-draw
the seniority list on the basis of observations made in the aforesaid G
Constitution Bench, since reported in [2000] 8 SCC 25. It may be stated at this
stage that the Govt. of India, Ministry of Law and Justice, communicated the
decision to the Judicial Department of Delhi Administration in June, 1986,
..,. conveying the sanction of the President of India in respect of the creation
of 14 temporary posts of Additional District and Sessions Judges. Since at
that point of time under the rules in force, appointment to the temporary posts H
320 SUPREME COURT REPORTS [2001) 3 S.C.R.

A in the service could be made only by promotion from Delhi Judicial Service,
the Association of Promotee Officers made a representation to the Chief
Justice of the High Court that the newly created temporary posts be filled up
by promotion from amongst the members of the Delhi Judicial Service, but
that representation having failed to evoke any response from the High Court,
a writ petition had been filed in this Court which was registered as Writ
B Petition No. 1540/1986, praying therein that mandamus be issued to the Lt.
Governor of the Delhi Administration as well as the Union of India to fill up
the posts of 14 temporary Additional District & Sessions Judges in accordance
1

with the Delhi Higher Judicial Service Rules, 1970. That writ petition was
disposed of by an order of this Court dated 18.12.1986, which is quoted
C herein-below in extenso:

"We are indeed happy that the petitioners out of respect for the
High Court and having full trust in the High Court have expressed
their desire to withdraw the writ petition for the sake of congenial
atmosphere between the senior members of the judicial family and the
D junior members thereof. In the light of consensus emerging .at the
hearing of the matter we deem it necessary to evolve the formula as_
outlined hereinafter in order to resolve the problem with expedition
and to the satisfaction of all concerned. Counsel appearing for all the
parties are agreed that the formula evolved as under is fair and
reasonable and all of them are agreeable to the same being embodied
E
in our order, accordingly do so as under:-

1. We request the High Court to be good enough to finalise the
draft rules latest by January 15, 1987. We request the High Court
F to strain itself if necessary and to ensure that the draft rules are
finalised before the said date and are forwarded to the Delhi
Administration and the Union of India for sanction by a special
messanger forthwith.

2 We request the Delhi Administration to be good enough to take
G
a decision in regard to the matter pertaining to sanctioning of
the draft rules latest by February 9, 1987. We also request the
· Delhi Administration to treat this as a special case, to cut the
delay which ordinarily takes place on account of procedural
problems, and take a decision whether or not to grant the sanction
H on or before the said date. In case sanction is granted the papers
--t"'

--t DELHI JUDICIAL SERVICES ASSON. v. DELHI HIGH COURT [PATTANAIK, J.] 321

-....__. be forwarded to the Union of India by a Special Messanger A
forthwith.
~

3. We request the Union of India to be good enough to treat this
as a special case and to take a decision one way or the other
within three weeks of the receipt of the papers from the Delhi
Administration. We request that procedural delays may be B
avoided and a special effort may be made to ensure that the
appropriate decision is taken and is gazetted within the aforesaid
time span.
4. During the interregnum awaiting the decision of the Delhi
Administration and the Union of India we request and authorise
the High Court to go ahead with the selection process from
c
amongst the members of the Delhi Judicial Service in the light
of the draft rules in anticipation of sanction, so that the selection
process is completed to the extent possible by the time the
sanction is received.
D
5. We also request and authorise the Delhi High Court to invite
applications from the members of the Bar by way of a public
advertisement for making direct recruitment in anticipation of the
sanction ot the draft rules. When the draft rules are sanctioned
the applications which are received will be treated as having
been made in purwance of and under the rules as sanctioned E
and published hy the Competent Authority. After the draft rules
are sanctioned and published a further advertisement inviting
applications from the members of the bar for direct recruits shall
be publish~d within a week of the publication of the rules giving
a short notice of 15 days to enable those members of the bar
F
who might not have responded to the first advertisement issued
in anticipation of the sanction of the rules as indicated
hereinbefore to make application. The selection process in resp~t
~ of direct recruits by way of interviews etc. will begin after all the
applications are received pursuant to both the advertisements.
-I The screening of the applications received in response to the G
first advertisement issued in anticipation of the sanction of the
draft rules may be undertaken meanwhile to save time.
6. We further request the High Court to make the selection and
forward its recommendations for filling the posts to the Central
Government as early as possible and in any case by April 15, H
322 SUPREME COURT REPORTS [2001] 3 S.C.R.

A 1987.
.,..J,o..
7. We also request the Central Government to be good enough t<?
expedite the process of making appointments in accordance with """
law upon the receipt of the recommendation at the earliest.

II
B
8. Before we part with this matter we consider it appropriate to
make a recommendation to the Delhi Administration and the
Union of India in regard to a matter of significance which came
to force. Most of the judicial officers of the Delhi Judicial Service
have been stagnating for very many years for lack of promotional
c avenue which is inherent in the very nature of the service and
limitation of other openings due thereto. This situation results
in the judicial officers being less than contented in the absence
of incentive or hope for a better future. Such a situation is not
conducive to bring out the best in them. It is desirable from
D every, point of view to maintain the morale and efficiency of the
judicial officers at the highest throughout their tenure. It strikes
us that it would be desirable to adopt the anti-stagnation formula
which is applied in many public Corporations by way of creating >
'Special grades' carrying a better scale than the existing grade
~
for those who have invested 12 years' of service. (We think that
E 12 years would be appropriate because a selection grade would
be available to the judicial officers on the completion of eight
years under the present rules the some upgrading occurs four
years later). We strongly recommend that a decision on this
issue be taken as early as possible by the Delhi Administration
and the Union of India in the larger interest of all concerned. )>·
F
9. We also recommend to the Delhi Administration and the Union
of India to give anxious and early consideration to the request
of the Delhi High Court for converting existing temporary posts
into permanent posts having regard to the increase in the volume
G of work and the unliklihood of decrease in workload in the near
future.

In view of the aforesaid formula which has been well received by
all the parties who have reacted in a positive manner in the right spirit,
the petitioners are withdrawing the writ petition. Liberty to revive the
H matter in case the situation so demands but not before April 15, 1987.
DELHI JUDICIAL SERVICES ASSON. v. DELHI HIGH COURT [PATTANAIK, J.] 323

The Writ Petition is disposed of as withdrawn accordingly." A
The rules stood amended by a notification issued on 17th of March,
1987 and by the amendment in question the expression 'in substantive capacity'
occurring in Rule 2(d) stood deleted. The word 'substantive' in the first
proviso to Rule 7 was omitted. Sub-rule 2 of Rule 16 was substituted and the
substituted rule provided that the posts created under sub-rule (1) of Rule 16 B
could be filled up in consultation with the High Court from amongst the
members of the Delhi Judicial Service and by direct recruitment from the Bar.
By way of explanation, Rules 5, 7, 8, 9, 10 and 11 were made applicable to
appointments made under Rule 16. Rule 17 was also substituted by the
amended rule which provided for filling up of substantive vacancies in the ¢
service by making temporary appointments thereto from persons appointed
under Rule 16. In nutshell, the impact of the amended rules was that
appointments could be made even to the posts temporarily created under Rule
16, both from the Bar as well as from the promotion from the Delhi Judicial
Service, which was hitherto being filled up oniy by promotion. After the
amended rules came into force, an advertisement was issued on 6th April, D.
1987, inviting applications from the practicing advocates for filling up of 10
temporary posts of Additional District Judges in Delhi Higher Judicial Service.
The Association of promotee officers made representation to the High Court
on 30.4.1987 against the aforesaid advertisement and the same having been
rejected and the order of rejection having been communfcated by letter dated E
1st June, 1987, the two writ petitions were filed in this Court, one by the
Association and other by an individual member of the Association.

Mr. P.N. Misra, the learned senior counsel, appearing for the Association
contended that the posts having been created prior to the amended rules
having come into force, those posts could be filled up onty in accordance
with the un-amended rules and necessarily, therefore, could be filled up by F
promotion from the Members of the Delhi Judicial Service, in terms of Rule
16, as it stood prior to the amendment and in this view of the matter, the
advertisement that was issued to fill up 10 posts by way of direct recruitment
is contrary to law and is liable to be struck down. Mr. Misra further contended
that on a construction of Rule 7(b), even if it is held that the posts were G
required to be filled up in accordance with the amended rules, 14 posts having
been created, only I/3rd of those posts could be filled up by direct recruitment
and, therefore, the advertisement is contrary to•the provisions of Rule 7(b)
proviso.

Mr. G.P. Thareja, appearing in-person, in addition to the contentions H
324 SUPREME COURT REPORTS [2001] 3 S.C.R.

A raised by Mr. Misra, further contended that Rules 7, 16 and 17 violate Article i,
233 as well as Article 16(1) of the Constitution and as such the same must
be struck down. He also further contended that even on the basis of +
calculations made by the High Court itself, the number of posts available for ....
direct recruits could be 9 and not 10.

B Mr. A. Mariarputham, appearing for the High Court of Delhi, on the
other hand contended that earlier order of this Court dated 18.12.1986 having
been passed in Writ Petition No. 1540/86, which petition had been filed by
the promotees, urging that the newly created temporary posts could be filled
4
up only by promotion from amongst the members of the Delhi Judicial Service,
c having unequivocally indicated to go ahead by inviting applications from the
members of the Bar by way of public advertisement for making direct recruitment
in anticipation of the sanction of the draft rules, the contention that the
temporary posts created could be filled up only by promotion from the
members of the Delhi Judicial Service is wholly unsustainable. The learned
counsel further contended that on a proper construction of Rule 7(b), it would
D be apparent that though recruitment to the post of Delhi Higher Judicial
Service could be made both by promotion as well as by direct recruitment
from the Bar, but under the proviso, not more than I/3rd of the posts in the
service could be held by direct recruits. This being the position and taking
into account the total number of posts in the Delhi Higher Judicial Service,
E the High Court was fully justified in issuing advertisement for filling up of 10
posts by direct recruitment and as such there is no infirmity in the same,
requiring interference by this Court. He further contended that so-called
challenge to the validity of the Rules on· the ground that it contravenes
..
Article 233 or Article 16 is of no substance as the amendment in question
have been brought about in the light of observations made by this Court and
F at any rate there is no contravention of either Article 16 or Article 233, and
as such the writ petitions are liable to be dismissed.

In view of the submissions made at the Bar, the first question that
requires consideration is whether the temporary posts having been created
G prior to the amendment of the Rules, is it the law that those posts could be
filled up only in accordance with the un~amended rules and not otherwise?
· There is no dispute that 14 temporary posts of Additional District & Sessions
Judge were created in June, 1986 and it is also not disputed that as the posts
in question were not filled up, which could be filled up at that point of time · f
only by giving promotion to the Delhi Judicial Service, the Association had
H approached this Court in Writ Petition No. 1540/86. Mr. P.N. Misra, relying
DELHI JUDICIAL SERVICES ASSON. v. DELHI HIGH COURT [PATTANAIK, J.) 325

upon the decision of this Court in the case of Y. V Rangaiah and Ors. v. J. A
Sreenivasa Rao and Ors., [1983) 3 S.C.C. 284, and the decision of this Court
in B.L. Gupta andAnr. v. MC.D., [1998) 9 S.C.C. 223, vehemently contended
that the posts being available prior to the amendment coming into force, it
....
was obligatory for the authority to fill up those posts in accordance with the
rules, then in force and even after the amendment those posts could be filled
up only in accordance with the un-amended rules. Mr. Misra contends that B·
the rights of the members of the Delhi Judicial Service to get promotion to
the Delhi Higher Judicial Service in respect of posts created prior to the
amendment of the rules, cannot be taken away by inaction on the part of the
concerned authority in not filling up the same and issuing advertisement only
after the rules having coming into force. In Rangaiah s case [1983) 3 S.C.C. C
284 this Court on consideration of the relevant rules as well as the instructions
issued by the Government, came to hold that a list of approved candidates
was required to be prepared as on 1. 9 .197 6 for making appointments to the
grade of Sub-Registrar Grade II by transfer, but no such list having been
prepared and instead, the same having been drawn up in 1977, by which time
the amended rules have come into force, it was held that the legitimate right D
and expectations of those, who were entitled to be included in the list which
ought to have been prepared in September, 1976 cannot be frustrated on
account of the fact that the panel had not been prepared and it was so
prepared only in the year 1977. It is on this conclusion, the Court had held
that the vacancies available prior to 1.9.76 ought to be filled up under the un- E
amended rules. The aforesaid decision will have no application to the case
in hand inasmuch as in Delhi Higher Judicial Service there is no requirement
of preparation of any panel or list of candidates eligible for promotion by any
particular date. Then again, merely because posts were created under Rule 16,
it was not obligatory for the appointing authority to fill up those posts
immediately. That apart, the most important feature is the earlier order/direction F
by this Court dated 18.12.1986, which unequivocally indicated that the High
Court should start the process of selection by direct recruitment in accordance
with the draft rules which the Court had seen at that point of time. In other
words, this Court on being aware of the fact that temporary posts have been
created and a grievance has been made by the members of the Delhi Judicial G
Service that those posts were required to be filled up only by way of promotion
from them in accordance with the rules as it stood then, a direction had been
given that the posts should be filled up both by promotion and by direct
recruitment in accordance with the draft rules, in the event the said draft rules
ultimately come into force. This being the position, it is difficult for us to
accept the contention of Mr. Misra, appearing for the Association that the H
326 SUPREME COURT REPORTS [2001] 3 S.C.R.

A posts were required to be filled up only by way of promotion under the pre-
~.
amended rules notwithstanding the fact that the advertisement itself was
issued subsequent to the rules being amended and notwithstanding the fact
that this Court earlier had indicated that the process of selection even by
direct recruitment should take effect, without waiting for the rules being
finally enforced. The other decision in Gupta s case [1998] 9 SCC 223, what
B the Court was considering is that the rules of 1995 being prospective in
nature, the vacancies arisen earlier to that, whether could be filled up under
the pre-amended rules or the amended rules. Relying upon three earlier
decisions of this Court referred to in paragraph (9) of the judgment, the Court
held that the vacancies which had occurred prior to the amended rules were
C required to be filled up under the old rules and not by the amended rules. This
decision undoubtedly could have supported Mr. Misra's contention to a great
extent, had not there been the order of this Court dated 18.12.1986 in Writ
Petition No. 1540/86. The very dispute namely whether a mandamus could be
issued to fill up the temporarily created posts by giving promotion to the
officers of the Delhi Judicial Service was before this Court and the Court then
D evolved a formula which was held to be fair and reasonable and, therefore on
the agreement of parties, the said formula was embodied in the order. In other
words, the Delhi Judicial Service Association, which was petitioner in this
Court, agreed to the formula evolved by this Court to be embodied. While
embodying the formula, this Court had indicated that the High Court of Delhi
E should invite applications from the members of the Bar by way Qf public
advertisement for making direct recruitment in anticipation of the sanction of
the draft rules and further stated that after the draft rules are sanctioned and
published, a further advertisem~nt, inviting applications from the members of
the Bar for direct recruitment shall be published to enable those members of
the Bar, who might not have responded to the first advertisement issued in
F anticipation of the sanction of the rules. In the teeth of the aforesaid order,
the conclusion is irresistible that 14 temporary posts created even prior to the
amendment of the rules could not have been filled up only by promotion from
the Delhi Judicial Service as contended by Mr. Misra, the Ie11rned senior
counsel appearing for the Association. On the other hand, the earlier order
G of this Court unequivocally stipulates that those posts should be filled up in
accordance with the rules to be amended, which at that sta"ge was only in a
draft form. That apart, the process of selection not having been started and
even the advertisement itself not having been issued and such advertisement
having been issued only subsequent to the amendment of the Rules, it is
futile to contend that the posts could be filled up under the pre-amended
H rules, merely because the posts had been created while the amended rules
DELHI JUDICIAL SERVICES AS SON. v. DELHI HIGH COURT [PATT ANAIK, J.] 327

~ have not come into force. We, therefore, do ·not find any !substance in the first A
t submission of Mr. Misra, the learned senior counsel appearing for the
Association.

·- So far as the second contention of Mr. Misra is concerned, it depends
upon an interpretation of Rule 7(b) as amended. Rule 7(b) provides that
recruitment after the initial recruitment shall be made by direct recruitment B'
from the Bar provided that not more than 1/3rd of the posts in the service
shall be held by direct recruits. The expression "Service" has been defined
in Rule 2(e) to mean the Delhi Higher Judicial Service. The expression "direct
recruitment" has been defined in Rule 2(i) to mean a person who is appointed
to service from the Bar. The expression "Initial Recruitment" has been defined
in Rule 2(g) to mean the first recruitment and app_ointment made to the service
c
after the commencement of these rules. On a plain reading of the proviso, it
conveys the only meaning that while making direct recruitment from the Bar
''1 fill up the posts in Delhi Higher Judicial Service, care should be taken so
titat not more than l/3rd of the posts in the service could be held by direct
recruits at any point of time. Necessarily, therefore, the rules provide a D
maximum number of posts which could be filled up by direct recruits an~ it
... does not say that l/3rd of the number of vacancies at a given point of time
is required to be filled up by direct recruits. The embargo under the proviso
is that the High Court, while is entitled to fill up the posts in Delhi Higher
Judicial Service. both by promotion and by direct recruitment from the Bar, but
E'
... cannot make direct recruitment so as to exceed l/3rd of the total number of
posts in the service. At the relevant point of time when the advertisement was
issued, the total number of posts in the service being 53, 39 permanent and
14 temporary and the number of direct recruits at that point of time in Delhi
..\
Higher Judicial Service being 8, the advertisement issued by the High Court
being for recruitment by direct recruits for 10 posts, would not constitute an F
infraction of the proviso to Rule 7(b), as contended by Mr. Misra on the
interpretation of the aforesaid provision. We, therefore, are unable to persuade
ourselves to agree with the second submission of Mr. Misra, appearir.g for
the Association.

Coming to the question as to whether the amended rules, particularly
G
Rules 7, 16 and 17 can be held to be violative of Article 233 or Article 16 of
the Constitution, we fail to understand how Article 233 can at all be held to
have come into play. The contention of Mr. Thareja is that by providing in
Rule 7 that not more than l/3rd of the posts could be filled up by direct
recruitment, there has been a decline in the standard of appointees in the H
328 SUPREME COURT REPORTS [2001] 3 S.C.R.

A lowest level and the talented people are not willing to enter the judicial ~
service, which in turn affects the efficiency and intelligence of the officers in
the cadre and this in turn must be held to be violative of Article 233. The ""'
learned counsel also further contended that providing I/3rd of the posts in
the cadre, both temporary and permanent to be filled up by direct recruits -
results in the denial of equality of opportunity and violates Article 16(1) as
B well as it is discriminatory and violates Article 14. We see no substance in
the aforesaid contention. Article 233 itself provides for appointment of District
Judges and while Clause (1) lays down that the appointment could be made
by the Governor in consultation with the High Court, exercising jurisdiction -"
in relation to the State by promotion from the Subordinate Judicial Service,
c Clause (2) pmvides for appointment by a person not already in service of the
Union or the State as District Judge, provided he has been an Advocate for
not less than seven years. In other words, Clause (2) itself provides for
appointment by direct recruitment from the members of the Bar, The Delhi
Higher Judicial Service having been· framed in consultation with and on
recommendations of the High Court and the rules having provided for filling
D up the posts in Delhi Higher Judicial Service by promotion as well as by direct
~ecruitment with the rider that the direct recruits cannot be more than I/3rd
/

of the total number of posts, the contention that such rule violates Articles
14, 16 and 233 is wholly misconceived. In fact the question no longer remains
res integra, the same, having been raised and answered by this Court in the
E case of Orissa Judicial Services Association, Cuttack and Anr. v: State of
Orissa and Ors., AIR (1991) Supreme Court 382. In the aforesaid premises, the
contention of Mr. Thareja cannot be sustained. In the premises as aforesaid,
both the writ petitions fail and are dismissed.
J.-
B.S. Petitions dismissed.

r
'f .